We have little tolerance for gays seeking asylum

Last week a court in Malawi sentenced a gay couple who staged a same-sex wedding to 14 years in prison with hard labour for "violating the natural order". Magistrate Nyakwawa Usiwa told the two men that he was handing down a particularly "scaring sentence so that the public [would] be protected from people like you, so that we are not tempted to emulate this horrendous example".

Malawi is one of 37 African countries in which homosexuality is considered illegal. Around the world, there are another 26 countries where all homosexuality is considered a criminal offence (and an additional 17 countries where male homosexuality is illegal but female homosexuality is not criminlised, largely because it is thought not to exist).

Punishments range from whipping and incarceration (including life sentences) to the death penalty. The systemic homophobia and widespread persecution of gay and lesbian individuals across the globe is absolutely appalling.

Under Australia's Migration Act, individuals can appeal for refugee status on the basis that they hold a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".

In 2003, the High Court of Australia determined that homosexuals could claim to belong to "a particular social group" and so were entitled to apply for asylum if they could demonstrate that they were homosexual and that they faced persecution in their country of origin.

Conservative opponents were quick to argue that the "floodgates were now open" and "we" were about to be "swamped by tidal waves of immigrants". Others expressed concern over the potential for spurious claims to be made, circumventing Australia's refugee laws.

They need not have worried. Time and again the Australia Refugee Review Tribunal has proved itself to be breathtakingly obstinate and utterly insensitive towards those who apply for refugee status on the basis of their sexuality. Some of these decisions have been upheld by the highest courts in the land.

In one case a gay refugee couple who had experienced violence and harassment in their Bangladeshi homeland were told that they would be safe to return home provided they "conducted themselves in a discreet manner". The tribunal noted that "men [in Bangladesh] who conform outwardly to social norms, most importantly by marrying and having children, can get away with male to male sex provided it is kept secret".

Of course a person's right to be safely homosexual extends well beyond the right to seek out "discreet" homosexual sex. Furthermore, if we were to extend the tribunal's logic to cases involving people seeking asylum on religious or political grounds, this would not be dissimilar to ordering that progressive libertarians can live quite happily under oppressive Taliban regimes by simply practising their beliefs in private while outwardly conforming.

In a separate case, the tribunal attempted to determine the veracity of a claimant's homosexuality by asking him to describe the "art, literature, song lyrics [and] popular cultural icons [that] spoke to him in his isolation from the rest of society". It was indicated that they were looking for examples such as Madonna, Oscar Wilde, Greco-Roman wrestling and Bette Midler. The court added that the line of questioning was justified and comparable to quizzing Catholics on the Bible.

Ignoring the fact that the particular claimant was Iranian (and that none of the mentioned works were originally spoken, written or sung in Farsi), the court failed to realise that there are no agreed upon "homosexual" texts or icons that reach across international boundaries. There is no Big Gay Bible for homosexuals to diligently memorise and recite before a court.

Another claimant was rejected in 2007 on the grounds that because his first homosexual experiences had occurred while in detention, his homosexuality was not real, but "situational". That same year, a Fijian homosexual who had been physically and sexually assaulted was ordered home and told to simply ignore the verbal abuse and derogatory treatment he experienced.